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tutional in providing for the ap- | made, which, after reciting that a pointment of commissioners to act motion was made on behalf of the in the place of the Common Coun. respondents W. and F. to set cil in opening Flushing avenue. aside the order appointing the The object of Section 18 of Article commissioners, denied the motion. 3 of the Constitution, which pro- On December 16, 1882, an order vides that “the Legislature shall was made denying the motion made not pass a private or local bill * by all the respondents to vacate

laying out, opening, the order appointing commissionaltering, working or discontinuing ers and the order confirming their roads, highways or alleys," is to report, which order was resettled prevent any such legislative action January 8, 1883. The record does in regard to public highways and not contain any notice of motion, to place the control and manage except one in behalf of all the ment of them within the power of respondents for July 28, 1882, the local authorities. 67 N. Y., although a motion seems to have 568. The fact that the word been made previously, nor was "street" is excluded from the any appeal taken from the order provision is strong evidence of an confirming the report, except the intention not to interfere with one by W., until after a motion streets in incorporated cities. Said had been made and denied to section does not apply to streets vacate the order appointing comand avenues of cities, but only to missioners and to set aside the roads and highways as known and order confirming their report. An designated under the general high affidavit on the part of the appelway system of the State. 92 N. lants shows that proposals were Y., 629 ; 29 Hun, 304 ; 37 N. Y., advertised for and a contract made 267 ; 4 id., 419; 67 id., 568. for grading said avenue, which has

It appeared that there was no been partially performed and work opposition to the application for done of great value, for which the the appointment of the commis- contractor has been paid in certifisioners, and that W., one of the cates authorized to be issued by the respondents, appeared upon the act of 1878, and that if the orders motion to confirm the commission- are vacated the contractor will ers' report and objected to the lose a large amount; that the same. She appealed from the grading is nearly completed in order of confirmation, which was front of the property owned by the dated November 18, 1881. That moving parties. It also shows that appeal is still pending and unde- the assessments amount in the termined. Afterwards a motion aggregate to over $100,000, and was made on behalf of all the re- many of them have been paid. spondents to set aside the order Another affidavit alleges that the appointing the commissioners and clerk to the commissioners of the order confirming their report. estimate and assessment informed On October 24, 1881, an order was the affiant that a large number of

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persons whose lands have been Held, That she could not unite
taken for the improvement have in the motion to vacate the orders.
applied for and received the Order of General Term, reversing
amounts awarded to them for the order of Special Term denying
property taken. The order ap- motion and setting aside the pro-
pointing the commissioners was ceeding, reversed, and order of
made July 5, 1881, and the order Special Term affirmed.
of confirmation Nov. 18, 1881. No Opinion by Miller, J. All con-
attempt was made to vacate until cur.
the notice for July 28, 1882, and
the motion was not heard until in EXECUTORS. FORECLOSURE.
December, 1882. The motion was

PARTIES.
denied, and on appeal to the Gen-
eral Terni the whole proceeding

N. Y. COURT OF APPEALS. was set aside.

Lockman,exr.,applt., v. Reilley, Held, That as the decision of

respt. the General Term was to some extent discretionary, and as it may

Decided Feb, 26, 1884. be doubted whether it exceeded its

The will of R. gave bis residuary estate to his discretion, it is not perhaps the executors in trust to convert into money, subject of review on appeal; with- and apply the income to his widow and out however deciding that ques

children during their lives with remainder

to their issue. The executrix foreclosed a tion, as it appeared that one of the

second mortgage belonging to the estate, respondents and others similarly bid in the property and took a deed to her. situated had received the awards self as executrix subject to plaintiff's mortmade for the taking of their lands,

gage. The will conferred no power to in

vest the trust funds in real estate. Held, thus waiving any right to object to

That the land so acquired took the place of the constitutionality of the act,

the mortgage; that the legatees and next of and thus affirming the validity of kin and creditors of R. had no interest in it

as land, and were not necessary parties to the whole proceeding, the order of

an action to foreclose plaintiff's mortgage. the General Term setting it aside was erroneous.

This action was brought to comQuestions affecting the constitu- pel the defendant to specifically tional validity of an act of the perform a contract for the purLegislature should be considered chase of certain lot of land in the with great care, and in considering city of New York. It appeared them it is the duty of courts to that the purchase was made on a exercise some discretion in deter- sale under the foreclosure of a mining the time when and the mortgage. manner in which they should be It appeared that before plaintiff presented.

commenced the foreclosure S. V. It appeared that B., one of the R., the executrix of W. H. R., respondents, has not been assess- had foreclosed a second mortgage ed, her name not being upon the on the same premises which was assessment roll.

held by W. H. R. at the time of

concur.

his death, and bid in the property | ecutrix on the foreclosure of the at the sale for a sum less than second mortgage was simply to enough to pay the amount due, protect the estate, and the land acand took a deed from the referee quired did not come under the to herself, subject to plaintiff's same rules as if it had been the mortgage, in which she was de property of the testator at the scribed as executrix of and trustee time of his death; it took the place under the will of W. H. R. She of the mortgage and the executrix held this title at the time of the was liable to account for it as such. foreclosure by plaintiff of his 8 Paige, 152; 31 Barb., 457; 20 mortgage. W. H. R. gave his re. Hun, 537; 29 id., 249; 19 How., U. siduary estate, real and personal, S., 116; Williams on Exrs., 650, to his executors, in trust, to con- note d. vert the same into money and in- Judgment of General Term, revest the proceeds and apply the versing judgment for plaintiff, reincome to the use of his widow versed, and judgment for plaintiff and children during their lives in affirmed. certain proportions specified, with Opinion by Rapallo, J. All remainders over to their issue in the principal. The will conferred no power on the executors to in

PRACTICE. PAYMENT. vest the trust funds in land. S. V.

N. Y. COURT OF APPEALS. R., the widow, alone qualified. As such executrix and individual.

Carroll, exr., respt., v. Deimel ly she was made a party defendant et al., applts. in plaintiff's foreclosure; the ex

Decided March 11. 1884. ecutors named in the will and the cestui que trust, the children of When an equitable action is tried by the the testator, were also made parties; court and a jury the court may adopt the certain grandchildren of the test

verdict of the jury or may entirely disre

gard it and make its own findings, and in ator were not made parties. It

such event the appellate court must review was claimed that this omision ren

the case on such findings as if there had dered the proceeding defective. been no submission to the jury. Charles Jones, for applt.

Evidence of the teller of a bank where a

party keeps his account that such party Edmund Coffin, Jr., for respt.

made no deposit of a certain amount about Held, Untenable; that although

the time a payment is claimed to have been the legal title to the land was in made to such party is not competent to the executrix, as between her and disprove the fact of such payment. the legatees, next of kin and Reversing S. C., 13 W. Dig., 401. creditors of her testator they This was an action for the forenever had any direct estate or in- closure of two mortgages on real terest in it as land; it was as to estate. The judge submitted to them personal estate, and she holds the jury the question: "Did the it as the legal representative of the defendant on or about the first day testator. The purchase by the ex- of April, 1876, pay to Dr. Carroll, plaintiff's testator, $1,000 in cash | when the case comes up on appeal to apply on the bonds and mort- it is to be reviewed on the findings gages in suit?” To which ques of the court as if there had been tion the jury answered, Yes." no submission of any fact to the The judge who presided at the jury. 47 N. Y., 119; 51 id., 43, trial and heard all the evidence, 50. being dissatisfied with the verdict, Defendant having introduced on motion of plaintiff's counsel evidence to prove the payment of vacated it and found the facts $1,000 to Dr. Carroll on or about contrary to the verdict, and filed April 1, 1876, as claimed, plaintiff his findings and conclusions of law called on V., the teller of the bank on which judgment was entered where Dr. Carroll kept his acfor the plaintiff. This judgment count, and asked him whether Dr. was affirmed by the General Term Carroll, about the first of April and an appeal has been taken to and within a month either way, this court.

deposited $1,000 in that bank. B. F. Fish, for applts.

This was objected to as incompeSamuel Hand, for respt.

tent and inconsistent and the obHeld, That the judgment must jection was overruled. The court be reviewed as if there had been thereupon, without waiting for the no intervention of a jury, and the answer, directed the witness to state exceptions taken at the trial to what deposits Dr. Carroll made rulings upon evidence must be ex. before and after the date specified. amined.

The witness then stated the deDefendant was not entitled of posits from March 14th to May right to a jury trial, but the case 1st inclusive, among which no dewas one in which the court was posit of $1,000 appeared. authorized to direct any matter of Held, Error; that this evidence fact in issue to be tried by a jury, was not competent and had no such direction being a substitute legitimate tendency to disprove for the former practice of awarding the fact that $1,000 had been paid a feigned issue in an action in equi- to Dr. Carroll at or about the time ty. The direction could be given on referred to. the application of either party or Judgment of General Term, af.. by the Court of its own motion. firming judgment for plaintiff, reCode Civ. Pro., SS823, 971, 1003. versed and new trial ordered. The effect of the verdict and the Opinion by Rapallo, J. All proceedings thereon are the same as in the case of a feigned issue under the old practice. Code of

MORTGAGE. Pro., &$ 72, 254 ; 2 Abb., N. S.,

N. Y. COURT OF APPEALS. 385, 406 ; 52 N. Y., 47. The court

Murray et al., exrs., respts., v. may adopt the verdict and find accordingly or may disregard it Marshall, applt. and make its own findings, and Decided Feb. 8, 1884.

concur.

sume.

Defendant conveyed certain land subject to a gation, which inheres in the origimortgage which the grantee did not as. nal contract of sale and convey. The mortgagee, in consideration of

ance, is a definite and recognized payment of part of the principal, and without defendant's knowledge, agreed with right, which in the absence of an the grantee to extend the payment of the express agreement will be founded balance for three years. Held, That by so

upon one implied. 93 N. Y., 232. doing he took away, for the time being,

When the creditor extended the the mortgagor's right of subrogation, and this he had no right to do ; that the grantee time of payment by a valid agreestood in the quasi relation of principal ment with the grantee he at once debtor only to the extent of the value of for the time being took away the the land and the extension of time operated vendor's original right of subroto discharge the mortgagor only to the extent of that value.

gation and put upon him a risk

not contemplated ; this he had no Defendant executed a bond and

right to do. The grantee stood in mortgage to M., plaintiffs' testa.

the quasi relation of principal tor, and afterwards conveyed the debtor only in respect to the land mortgaged premises to H., subject as the primary fund and to the exto the mortgage, but the grantee tent of the value of the land, and did not assume the mortgage debt.

the extension of time operated to After the mortgage became due discharge the mortgagor only to M., in consideration of the pay. the extent of that value, beyond ment of the interest due and part that he was the principal debtor. of the principal, amounting to Where the evidence given on a $587.56, agreed with H., without trial is not contained in the printed the knowledge or assent of defend

case the court may assume that ant, to extend the payment of the

the facts proved were sufficient to balance of the principal for three sustain the findings and also any years, which period had not ex

additional findings necessary to pired when this action was brought sustain the conclusion of law not to recover the balance due upon in conflict with the affirmative the bond.

facts found. Henry D. Birdsall, for applt. Judgment of General Term, reJosiah T. Marean, for respts.

versing judgment for defendant, Held, That while no strict and reversed, and that of Special Term technical relation of principal and affirmed. surety arose between defendant Opinion by Finch, J.

All conand his grantee from the conveyance subject to the mortgage, an equity did arise which could not

EVIDENCE. be taken from the mortgagor withont his consent, and which N. Y. COURT OF APPEALS. bears a close resemblance to the

Holcomb, admr., respt., v. Holequitable right of a surety the

comb, applt. terms of whose contract have been modified. The right of subroga- Decided March 18, 1884.

cur.

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